State v. RawlsState v. Rawls
William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Parkerson, Dist. Atty., Walter Lee Perkins, Jr., Asst. Dist. Atty., for plaintiff-appellee.
BLANCHE, Justice.
Defendant, Wade A. Rawls, plead guilty to possession of marijuana in violation of
At the hearing on defendant‘s motion to suppress the evidence, the following facts were ascertained. Officer Royce Toney of the Ouachita Parish Sheriff‘s Department was conducting a surveillance of a bar and observed the defendant Rawls and two other persons outside the bar passing between
A search conducted without a warrant is per se unreasonable, subject to only a few well-delineated exceptions. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Franklin, 353 So. 2d 1315 (La. 1977). A search incident to a lawful arrest made of the person and the area in his immediate control is one of these exceptions. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Such a search is justified in order to discover weapons that may threaten the safety of the arresting officer and to prevent the concealment and destruction of evidence. Chimel, supra. A lawful arrest must already have occurred in order to justify a search incident to an arrest. State v. Aguillard, supra; State v. Marks, 337 So. 2d 1177 (La. 1976).
Evidence in proof of defendant‘s contention that he was not arrested at the time he was searched comes from the arresting officer who testified that he did not place the defendant under arrest until after he found the marijuana on his person. Despite this officer‘s testimony, we believe that he did in fact arrest defendant before searching him. The evidence shows that after defendant had been observed smoking a marijuana cigarette, he departed in a vehicle with two of his friends. Almost immediately thereafter, the vehicle in which he was riding was “jammed“, or surrounded, by two police vehicles. The police then descended on the stopped vehicle and Officer Toney went to the passenger side and ordered Rawls out of the vehicle. He then advised Rawls that they suspected the vehicle contained marijuana and advised him of his constitutional rights. He then brought Rawls to the back of the police vehicle and, while Rawls was in a “spread eagle” position over the back of the trunk of the vehicle, Officer Toney advised him that he was looking for both marijuana and weapons. With Rawls unrestrained in this position, we would consider that he was under arrest for the purpose of the constitutional justification of a search incident to a lawful arrest. The magic words “You are under arrest” could have hardly amounted to a more purposeful restraint.
In State v. Marks, supra, we noted that the statutory definition of “arrest” is keyed to the concept of restraint. See
For the reasons assigned, the trial judge correctly denied the motion to suppress and accordingly, defendant‘s conviction and sentence are affirmed.
CALOGERO, J., concurs.